Delivery of possession necessary.

Exceptions,

Although the property in a ship is evidenced by the bill of sale, or other instrument (r), the delivery of actual possession is necessary to give a complete title to the purchaser, and should always be made when practicable. As between vendor and vendee the transfer indeed is complete by payment of the price without delivery, but if the vendor, while permitted to remain in possession and to act as owner, become bankrupt, the property will pass to the assignees (s). If however the purchaser takes possession at any time before the bankruptcy, he will be deemed the owner, though the seller remained in possession during the intermediate time (t).

There are cases where actual delivery of possession is impracticable, and will therefore be dispensed with:

First, in the case of the transfer of a share by a part-owner, the possession of the other joint owners may be considered to be the possession of the vendee after the sale (u); yet, if the part-owner has the actual possession himself, delivery is not impossible, and ought to be made (r).

(r) Hubbard v. Johnstone, 3 Taunt. 177.

(s) Abb. Shipp. p. 12; Monkhouse v. Hay, 2 B. & B. 114; Hay v. Fairbairn, 2 B. & A. 193. See the Bankruptcy Act, 6 Geo. IV. c. 16, s. 72.

(t) Robinson v. M'Donnell, (re The Glory,) 2 B. & A. 134.
(u) Addis v. Baker, 1 Anstr, 222; Gillespie v. Coutts, Ambl.

(x) Abb. Shipp. p. 13.

Secondly, where the ship is abroad at sea at the time of the transfer, the property will pass completely at common law by the indorsement of the grand bill of sale, and the delivery of the documents relating to the ship (y). But in such case the buyer ought to take possession immediately on the return of the vessel (z).

master,

The master has no authority to sell the ship, Sale by unless in cases of extreme necessity (a); and a sale by him will generally be set aside as fraudulent and collusive. So, if he is a part-owner the sale by him will not be good for more than his own part (b).

Of Transfer by Mortgage.

share in

Respecting transfer of the ship, or a part, by Mortgage of way of mortgage, the registry act enacts that the ship. officers of customs of the port of registry shall state, in the entry and in the indorsement on the certificate, that such transfer was made only by way of mortgage (c).

A question had arisen under the former statutes, Mortgagee whether a mortgagee should be deemed the owner,

(y) Ibid; Ex parte Matthews, 2 Vez. 272; Atkinson v. Maling, 2 T. R. 462. See Mestaer v. Gillespie, 11 Ves. Jun. 637. (z) Mair v. Glennie, 4 M. & S. 210.

(a) Tremenheere v. Tresilian, 1 Sid. 453; Johnson v. Shippen, 2 Ld. Raym. 984; Hayman v. Molton, 5 Esp. 65.

(b) Abb. Shipp. p. 3.

(c) 3 & 4 Will. IV. c. 55, s. 42; 6 Geo. IV. c. 110, s. 45. See 4 Geo. IV. c. 41, s. 43.

not owner,

and be liable as such (d); since those statutes vested the legal interest in him without qualification. But it is now expressly declared that the mortgagee or trustee shall not be deemed to be the owner, except so far as may be necessary for the purpose of rendering the property available, by sale or otherwise, for the payment of the debt, for the securing whereof such transfer shall have been made (e). And the right or interest of the mortgagee, or other assignee, shall not be affected by the bankruptcy of the mortgagor after registry of the mortgage, although the mortgagor at the time of the bankruptcy had the property in his possession and disposition, and was the reputed owner (ƒ).

Contracts

contrary to statutes void.

PART III.

OF SALES OF PROHIBITED GOODS AND CHATTELS.

It is now the established rule, that courts of justice can give no assistance to the enforcement of contracts, which the legislature has interdicted. "Every contract, made for or about any matter or thing which is prohibited and made unlawful by any

(a) Chinnery v. Blackburne, 1 H. Bl. 117 n; Jackson v. Vernon, 1 H. Bl. 114; Annett v. Carstairs, 3 Campb. 354; Abb. Shipp. p. 53.

(e) 3 & 4 Will. IV. c. 55, s. 42; 6 Geo. IV. c. 110, s. 45; Irving v. Richardson, 2 B. & Adol. 193; Kerswell v. Bishop, 2 Cr. & J. 529; S. C. 2 Tyrw. 602.

(f) 3 & 4 Will. IV. c. 55, s. 43; 6 Geo. IV. c. 110, s. 46.

statute, is a void contract, though the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender; because a penalty implies a prohibition, though there be no prohibitory words in the statute" (a). The contrary doctrine was formerly held; for, where in a plea of sale in an open fair, the case of the fair day falling on a Sunday was not excepted in alleging the right to hold the fair, the Court declared the want of such exception to, be immaterial, because they said that, although by the statute (b) there is a penalty inflicted upon the party that sells upon Sunday, yet it makes it not to be void (c). The doctrine is altogether overruled. Thus, it was determined that the seller could not recover the value of bricks sold under the statutable size (d). On the same principle, where in the sale of coals the form of the vendor's ticket given by statute (e) was not complied with, the plaintiff was nonsuited (ƒ).

(a) Per Holt, C. J., Bartlett v. Vinor, Carth. 252. And see 1 Taunt. 136; Gallini v. Laborie, 5 T. R. 242; Bensley v. Bignold, 5 B. & A. 335; Marchant v. Evans, 2 B. Moore, 14; Billard v. Hayden, 2 C. & P. 472; Houstoun v. Mills, 1 M. & Rob. 325.

(b) 27 H. VI. c. 5.

(c) Comyns v. Boyer, Cro. Eliz. 485, referred to, 1 Taunt. 136, by Mansfield, C. J. See Bro. Abr. Trespass, pl. 328.

(d) Lan v. Hodson, 11 East, 300; S. C. 2 Campb. 147. [Bricks for sale are required to be of certain dimensions by 17 Geo. III. c. 42.]

(e) 47 Geo. III. c. 68, s. 113.

(f) Little v. Poole, 9 B. & C. 192.

Mere want

of qualifica

dor does not avoid the

sale.

So, where butter was sold in firkins which were not branded and marked as required by statute (g). The selling of corn by any other measure than the Winchester bushel being prohibited (h), such a contract could not be enforced unless the ratio of the measure used to the standard measure was specified by the parties (i). If a contract, at the time of making it, was illegal by statute, a subsequent repeal of the statute will not make the contract valid (k).

Where, however, there is no prohibition against tion of ven- the selling of the goods, but merely a statutory enactment requiring the seller to be licensed, the value of the goods sold may be recovered, though the vendor were unqualified. This was held in a case where the plaintiff had sold tobacco without being duly licensed; the Court observing, that there was no fraud upon the revenue, which was the principle on which most of the smuggling cases were decided, and no clause in the Act making the contract of sale illegal, but at most it was a breach of a mere revenue regulation, protected by a

(g) Forster v. Taylor, 5 B. & Ad. 887; 36 Geo. III. c. 86. (h) 22 Car. II. c. 8, s. 2; 22 & 23 Car. II. c. 12, s. 2; 5 Geo. IV. c. 74; Rex v. Major, 4 T. R. 750; Rex v. Arnold, 5 T. R. 353.

(i) See per Ld. Tenterden, C. J., in Watts v. Friend, 10 B. & C. 448; Tyson v. Thomas, 1 M'Cl. & Y. 119; Hockin v. Cooke, 4 T. R. 314.

(k) Jaques v. Withy, 1 H. Bl. 65.